The planning application of course required the Council to weigh all material considerations; but, in particular, it required the Council to consider, in the light of the relevant policies, the tension between the local need for affordable housing and the impact of the proposal on this location within the AONB. One primary ground of challenge is that the Council’s approach to this task was not in accordance with the relevant policies and was therefore unlawful…

This debate did not apparently include any consideration of alternative sites: none is recorded in the minutes….

the Council accepted that the grant of permission “failed to adequately specify what exceptional circumstances weighed in favour of granting permission such as to outweigh the impact of the development of the AONB”. …

The Developer’s stance, briefly put, has been to deny that the Council erred in its approach to the relevant AONB policies (Ground 1), and to aver that the reasons given for the grant were adequate (Ground 2)….

Where an application is made for a development in an AONB, the relevant committee or other planning decision-makers are required to take into account and weigh all material considerations. However…the NPPF places the conservation of the landscape and scenic beauty of an AONB into a special category of material consideration: as a matter of policy paragraph 115 requires it to be given “great weight”, and paragraph 116 of the NPPF requires permission for a major development such as this in an AONB to be refused save in exceptional circumstances and where it can be demonstrated the proposed development is in the public interest. In coming to a determination of such a planning application under this policy, the committee are therefore required, not simply to weigh all material considerations in a balance, but to refuse an application unless they are satisfied that (i) there are exceptional circumstances, and (ii) it is demonstrated that, despite giving great weight to conserving the landscape and scenic beauty in the AONB, the development is in the public interest. The committee may of course depart from the guidance (see paragraph 41(iv) above), but (i) the Planning Committee certainly gave no reasons for doing so, and (ii) as I have indicated above (paragraph 49(i)), Mrs Townsend did not seek to argue that they did, in this case, deliberately and informedly depart from the guidanceIt was the Planning Committee’s duty to exercise their own judgment on the application. In doing so, they were of course entitled to come to a different conclusion from that of the officer. However, they could not do so without, in their summary reasons, (i) indicating that they had correctly identified, understood and applied the relevant policies, notably paragraphs 115-116 of the NPPF; and (ii) explaining, if but briefly, why they had come to the conclusion they had, and thus why they considered the officer’s conclusion wrong.

[The minuted reasons] suggests that the Committee found that the need for affordable housing outweighed the harm to the AONB that the development would cause, on the basis of a simple balancing exercise. However, they were not performing a simple balancing exercise. They could only approach the application on the basis of the paragraphs 115-116 of the NPPF: they had to find exceptional circumstances, and then, giving the conservancy of the AONB great weight, determine whether other factors (including of course the need for affordable housing) meant that the public interest was nevertheless in granting permission for the development. … the words in the summary grounds…suggested – and, in my view, very strongly suggested – that they had ignored the requirements of paragraphs 115-116 of the NPPF, and adopted a wrong approach.

one can properly assume from that experience alone ….that they had in mind, and understood and applied, the requirements of paragraph 115-116 in this particular case; and properly addressed their minds to the scope for alternative ways on which the accepted need for affordable housing could be met in Mevagissey by developments on alternative deliverable sites that would do less harm to the landscape and scenic beauty of the AONB.

The Tetbury case was not challenged on AONB grounds, but on 5 year supply, grounds, in any event the SoS in the Tetbury case felt the harm was limited, so the Dower test had only limited applicability. Had the grounds of JR in the Tetbury case been drawn up after the recent successful surrey golf course JR they might have been different as the SoS explicitly did not consider alternative sites on the edge of Tetbury. Even if there is no 5 year supply the decision maker needs to demonstrate the Dower test has been met.

The Grasslands Trust team blog about nature conservation and broader environmental issues, always with a focus on our threatened grassland habitats. The views in this blog do not necessarily reflect those of the Trust.